Bonum Certa Men Certa

'Cloud', 'AI' and Other Buzzwords as Excuses for Granting Fake Patents on Software

Cloud on beach



Summary: With resurgence of rather meaningless terms like so-called 'clouds' (servers/hosting) and 'AI' (typically anything in code which does something clever, including management of patents) the debate is being shifted away from 35 U.S.C. €§ 101 (Section 101); but courts would still see past such façade

THE EPO and USPTO both have a bad new habit that they spread to other patent offices, such as KIPO in Korea. They use or misuse buzzwords. They try to make things outside patent scope seem so innovative that somehow this supposed innovation defies the rules (scope). Sometimes that manages to impress or at least confuse examiners and judges.

"So let's start with this assumption that patent maximalists have come to accept Section 101/Alice renders software patents worthless and even overzealous, very large law firms (Finnegan is one of the biggest) insist that patenting has gone too far for practical purposes. Where do they go from here? Buzzwords."It's hard to patent software. So it's not hard to see why patent maximalists would pursue such tricks. As recently as Sunday Watchtroll published this rant about Section 101/Alice -- the basis (or legal framework) upon which most software patents become void. "This has prompted many to cast a grim prospect for the software patent industry," Babak Nouri (at Watchtroll) wrote less than a couple of days ago, as if the patents themselves are the industry...

"A Realistic Perspective on post-Alice Software Patent Eligibility" is the headline and here's a snide remark directed at the law itself: "Much of the havoc wrought in the software patent system by the landmark decision Alice v. CLS Bank International, 134 S. Ct. 2347 (2014) stems from the unworkable two-part patent eligibility test based on vaguely defined and nebulous Abstract idea and significantly more constructs. The High court’s reluctance or perhaps inability to precisely define these standards and the perceived lack of discernible consistency by the patent community in the way these standards have been applied in the compendious jumble of case law, has perpetuated a sense of uncertainty. This has prompted many to cast a grim prospect for the software patent industry."

Who said this so-called 'industry' (it's not even an industry) deserved to exist in the first place? Let coders write code. Most of them never dealt with lawyers and aren't interested in lawsuits. It's the lawsuits 'industry' looking to cause trouble.

A few days ago Elliot C. Cook and Jeffrey A Berkowitz (Finnegan, Henderson, Farabow, Garrett & Dunner, LLP) published "Successful Companies Don't Just Patent Everything—They Make And Follow A Strategy".

You can't patent everything anyway. Sooner or later, as in the US with its courts, you realise that the lion's share of your patents are fake, worthless, toothless. Or in their words: "In both of the above illustrations, the companies failed to develop and implement a patent strategy. Emerging companies should concentrate on building a patent monopoly covering the most commercially important aspects of their new technologies while making efficient use of their patent dollars and the precious time of their key inventors. In short, when companies formulate their business strategy, patents should play an integral role. Patenting too sparingly or recklessly is not strategic and is not a way to generate company value."

So even a law firm that promotes software patents quite actively admits these downsides. In some cases, as in this new example of Swisscom and ASSIA, companies just cross-license and move on (wireless for the most part in this particular case/agreement, not algorithms).

So let's start with this assumption that patent maximalists have come to accept Section 101/Alice renders software patents worthless and even overzealous, very large law firms (Finnegan is one of the biggest) insist that patenting has gone too far for practical purposes. Where do they go from here? Buzzwords. We already wrote dozens of articles to that effect and over the past week we saw several new examples.

Japanese blogger Satoshi Watanabe wrote about patent trolls or feeding a patent troll in Japan for blackmail purposes. “Patent utilization” is what he (or they) use as the newest euphemism (rather than enforcement, monetisation, assertion and so on). He also alludes to "artificial intelligence (AI)-based" at the end:

“Patent utilization” has been a buzz word in Japanese IP industry. There seems to be an increasing number of companies thinking that they should make effective use of patents that haven’t been used by themselves; i.e. monetize such patents by selling or licensing them to others. Actually, a client of ours has asked me what salable or licensable patents are like.

First of all, you may need to know when a patent transaction occurs.

[...]

It's hoped that artificial intelligence (AI)-based solution will be developed.


That last part refers to how patents are managed, but it's part of a recent (past year) trend. They keep bringing up "AI". Some so-called 'IP' lawyers admitted to me that they don't even really understand what it means, yet they keep using the term. It's like a fashion.

How about this new article (4 days old) that speaks of "machine learning-base [sic] anomaly detection" in relation to new Anodot patents? George Leopold wrote about these bogus software patents being granted in the US. It's incredibly hard to believe/imagine patent courts tolerating such abstract/mathematical methods being patented as a monopoly.

To quote from the article:

Anodot, which focuses on using machine learning techniques to spot anomalies in time-series data, announced a pair of U.S. patent awards this week covering its autonomous analytics framework.

The analytics vendor said Thursday (Oct. 11) it has been granted two U.S. patents for algorithms that allow users to apply machine learning-base anomaly detection. The algorithms are designed specifically to quickly identify the source of anomalies in large data sets, then perform root-cause analysis. The approach is promoted as faster than traditional business intelligence tools or dashboards.

[...]

Anodot was launched in 2014 when its co-founders realized there was an unmet need for fast and accurate time-series analysis.


Those are software patents. It's algorithms, but they dress it all up in innovation- and novelty-sounding terms. Why did the USPTO grant such software patents? How about this new application from Apple? A lot of press about it this past week (dozens of articles), as is typical for Apple. But Apple will never sue with this patent/s, so we won't see the courts lecturing Apple on why it's patent-ineligible. If it ever gets granted in the first place...

Well, the patent office got its money anyway... and Apple got puff pieces about how it's presumably combating spam.

In other 'news', this time from JD Supra (a press release), patent law firms (Sterne, Kessler, Goldstein & Fox P.L.L.C. in this case) still try to figure out how to get bogus patents on software and nature, even if courts will reject these. From The Current State of Patent-Eligible Subject Matter:

In the wake of the Supreme Court’s Mayo and Alice decisions, uncertainty has surrounded what inventions are patent eligible in the United States. In Mayo and Alice, the Supreme Court developed a two-step test to determine patent eligibility. Step one determines if the invention is directed to a law of nature, natural phenomenon, or abstract idea. If so, the second step determines if there is an inventive concept sufficient to ensure the patent amounts to significantly more than the ineligible concept itself.[i] While this test has led to uncertainty in what inventions remain patent eligible, post-Mayo/Alice case law has begun to shed light on what is patent eligible in the United States. The current state of patent eligibility in the technology areas most impacted by the Mayo/Alice two-step are outlined below.

[...]

Software and Business Method Claims

Software and business method patents have faced significant challenges since the Mayo/Alice decisions. Software claims, are not per se ineligible, however software claims that merely gather, analyze, and output data are patent ineligible.[xii] Software claims can be patent eligible when they are directed to an improvement in the way computers operate.[xiii] Additionally, claims which recite specific limitations to overcome deficits or problems in the prior art have been found patent eligible.[xiv] Based on these holdings, to be patent eligible software claims must recite specific steps to obtain a desired result rather than recite merely the result itself.[xv]


After Alice and In Re Bilski we can pretty much assume things have changed profoundly. Sure, the patent office might still grant such patents. But what matters a lot more is whether those will be enforceable in court at any point before their expiry. The culture of patent embargoes and patent maximalism needs to end at the patent office too in order to preserve any presumption of patent validity. The USPTO continues to assess its performance using the wrong yardstick, e.g. number of patents granted. Patent maximalists are meanwhile pushing the lunacy which is computer-generated patents (we put the following articles in our daily links last week). Here's what Law 360 and IAM are suggesting:



So what they're basically saying is, let a bunch of machines manage the patent system; as if that's going to make matters any better...

Published a few days ago in the The National Law Review and another publication was this article of Christina Sperry (Mintz) and the litigation industry; under "Subject Matter Eligibility Under 35 U.S.C. €§ 101" they admit that "AI" patents are just bogus software patents but promote these fake patents anyway. To quote the relevant part:

Subject matter eligibility for patent under 35 U.S.C. €§ 101 has been a particularly hot topic since the 2014 Supreme Court decision in Alice Corp. v. CLS Bank Int'l. Section 101 patent eligibility has particular relevance to AI and digital health since they often involve computers and/or data processing whose mere presence, reference, or implication in claims frequently give rise to subject matter eligibility questions during patent prosecution as well as during litigation after patent issuance.

The breadth and gravity of current €§ 101 issues has been explored elsewhere and is beyond the scope of this article. In general, Alice and subsequent lower court decisions have made it more difficult to get patents issued with claims involving computers and/or data processing. It is therefore important to consider potential patent eligibility concerns under €§ 101 during the patent application drafting process in order to preemptively address these concerns as much as possible before the application faces any challenges during prosecution or during litigation as an issued patent.


To be quite frank, the abundance and overuse of the term "AI" by patent lawyers is a cause for concern. The only more worrying thing is seeing administrators at the EPO and USPTO adopting the term as well; they use that as a sort of synonym for software patents and we're asked to believe that they grant such patents for the betterment of society or manage patents using "AI" (they just mean things like search and inferences) to expand human understanding rather than make staff redundant, only to be replaced by vastly inferior performance.

Recent Techrights' Posts

IBM 'Dinobabies' Speak Out
"They want newbies out of school at a much cheaper rate"
 
An American War on GNU/Linux, Software Freedom, and British Investigative, Science-Based Reporting - Part V - Attempts to Take Down and Suppress Criticism of Back Doors Controlled by Microsoft and the American Government
The cost of maintaining illusions
IBM's Payroll: Cannot Even Pay the People What They're Legally Entitled to
How financially-stressed is IBM at this point?
Slides From the European Patent Office (EPO) Explain Why They're Striking, How They're Striking, and What Comes Next
A week from now the strike will go ahead
GAFAM Datacentres Are Facilities of War, So Risk of Downtime by Missiles or State-Sponsored Cracking Has Vastly Increased
How safe is your business in "clown computing" or DCs marked as some "legitimate targets" at wartime?
Companies That Take Away Blood and Sweat From the Community to Sell a Ponzi Scheme to Everybody
We need Free software that is run by communities
1,234 People Gather Online to Plan Next EPO Strikes and Other Industrial Actions
yesterday an online gathering orchestrated the next moves by EPO staff
Links 11/03/2026: Fake Videos Swarm YouTube, "Ukraine Can Now Manufacture ‘China-Free’ Drones"
Links for the day
Gemini Links 11/03/2026: Lagrange for iOS and Android and "Turning a Folder of Git Repos Into Project Launcher"
Links for the day
Kafkaesque: Unlawful Activities in the UK to Cover Up Unlawful Activities in the United States of America
Why is bribery and even extortion seen is OK? Because rich people do those things?
Former IBM Executive, Ron Hovsepian, Doomed S.u.S.E. (SUSE)
SUSE is like a child nobody wants to raise
Quiet Layoffs or Silent Layoffs Alleged at Microsoft
Will some investigative journalists do their job now and ask Microsoft tough questions?
After a Long Lull LinuxTeck (linuxteck.com) Came Back Only as a Slopfarm
Unlike Linuxiac, LinuxTeck wasn't very active in recent years
Links 11/03/2026: EPO and USPTO Software Patents Thrown Out Again, Copyright Concerns Over Slop (Plagiarism Using Buzzwords)
Links for the day
Microsofters' SLAPP Censorship - Part 9 Out of 200: 5RB Barrister Does Not Even Know the Name of His Own Client (That He Was Paid Well Over $200,000 to 'Speak' or 'Cover' for)
If you assault women in the United States, there's a barrister available for you in the UK
IBM's Fedora is Now Led by GAFAM Slop
The official word of Fedora is partly slop
Links 11/03/2026: "Drill, Baby, Drill" and Social Control Media Recognised as Threat to Democracy
Links for the day
5 Years Since Freenode Conflict
IRC isn't going away
A Week Ahead of Next EPO Strike the Staff Representatives Show the Administrative Council That the Office Lost the Best Staff, It's No Longer Attractive
the message circulated regarding the open letter to the Administrative Council
Jeff Bezos as an Individual Said to Have Enough Capital to Buy IBM
Assuming a market capitalisation of 234.70 billion
Starting Soon: Another New Series About Richard Stallman
There are some inside stories we can tell
Gemini Links 11/03/2026: School, Code Slop, and "Fancy Weapons"
Links for the day
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Tuesday, March 10, 2026
IRC logs for Tuesday, March 10, 2026
Geminispace Continues to Grow
Geminispace Will Soon Have 5,000 Capsules
Very Little Slop About "Linux"
We hope to see slop eradicated by year's end
BBC Lied for Its Longtime Sponsor (Bribes for 15+ Years) Bill Epsteingate, in Effect Covering Up Sex Trafficking of Underage Girls
The state of the media is truly awful
Microsoft GitHub is Not Free Hosting and It Won't Last
Not for much longer [...] Microsoft is afraid to say that it is pulling the plug, but it seems inevitable
Mass Layoffs at Microsoft, March 2026
When will the media properly investigate this?
An American War on GNU/Linux, Software Freedom, and British Investigative, Science-Based Reporting - Part IV - Escalating to Ministers, Explaining the Severity of These Matters
British Sovereignty at Stake
"The Lost Generation" Came Back, This Time Literally
Based on my limited experience with young people ("alphas"), they're lost
IBM is Not Likely to Survive Another Decade
Despite having already survived over a century [...] Last week we saw claims that some company would likely acquire IBM for its remaining assets
IBM Has Just Been Sued Again by Its Own Staff (This Time a Manager, Stephen P. Gutierrez)
IBM's behaviour towards its staff can prove costly
When a Company Says Its Layoffs are "Due to AI" Check the Debt (Typically the Real Reason for Mass Layoffs)
The mass layoffs at Microsoft continue, but Microsoft hides those in some of the same ways IBM does
Doing More With Less
primacy of concepts rather than bells and whistles
Andy and Helen in Cybershow on Divesting From the United States' Technology and Politics
It is no longer considered a taboo to say this and it's not "anti-American" because many Americans can relate to and agree with such criticism
Links 10/03/2026: "GEMA v. Suno Copyright Case" and "Valve Faces PRS Lawsuit Over Allegedly Unlicensed Steam Music"
Links for the day
Gemini Links 10/03/2026: Woods in UK, Slop Laziness, and "Small Technology and Small Economic"
Links for the day
Garrett Announces LibreLocal Instance in Northampton, Massachusetts (USA)
his message was the only one last month
Microsofters' SLAPP Censorship - Part 8 Out of 200: Gross Misuse of UKGDPR to Protect the Agenda of American Back Doors (Mass Surveillance)
Responding to bunk claims regarding UKGDPR and claims of 'analytics' in our sites
Links 10/03/2026: Oil Prices Rising, South Korean/US Military Assets Redirected
Links for the day
Links 10/03/2026: Rust Rewrites by Slop "20,171 Times Slower", "You MUST Review LLM-generated Code"
Links for the day
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Monday, March 09, 2026
IRC logs for Monday, March 09, 2026
Attacks on Techrights Make Techrights Stronger and Attract More Whistleblowers to Techrights
The harder they attack us, the more productive we become
The Register MS Has Just Taken Money From Google (Where the Former Chief Editor Now Works) for Femmewashing and Ponzi Scheme Promotion
now The Register MS not only promotes a Ponzi scheme but also bags money to pretend Google respects women
People at IBM Are Still Smart Enough to Understand What's Really Going on
"I would never refer someone to work at IBM that I liked! I hope all of you have reviewed IBM on Glassdoor."
European Patent Office (EPO) to "Eventually Eliminate the Tasks Performed by Formalities Officers"; EPO Run by People Without Experience in Patents
full paper
RMS is 73 Next Week
Richard Matthew Stallman (RMS) turns 73 exactly 7 days from now
Iran & FSFE: blackmailing women, from football to the French Government (CNIL)
Reprinted with permission from Daniel Pocock
An American War on GNU/Linux, Software Freedom, and British Investigative, Science-Based Reporting - Part III - Very Strong Legal Basis for an Appeal
The case is now being escalated to a Foreign Secretary and former Deputy Prime Minister
Police investigations, lawsuits & Debian leader election candidate shortage
Reprinted with permission from Daniel Pocock
Richard Stallman (RMS) Has Defeated Cancel Culture, a Mostly American Phenomenon
RMS is talking now
No Slop Found in RSS Feeds, Only in Google News
No slopfarm will survive for very long, certainly it'll go bust as soon as readers (if it had any) know what it is
Links 09/03/2026: Many Security Breaches and a Pandemic of Censorship
Links for the day
People Who Work or Worked at IBM Hate It
bluewashing is only the first step
Richard Stallman (RMS) Talks in 30 Minutes, Next Stop Bern (Last Stop)
We assume he'll travel back to Boston after that
IBM's Fedora as a Booster of Slop Disguised as Code or Computer Programs
Maybe we should also stop seeing a doctor and instead ask chatbots about symptoms?
Richard Stallman (RMS) Talk Five Hours From Now
there is growing recognition for what he really did for everybody
What the Solicitors Regulation Authority (SRA) and Action Fraud UK Have in Common
Don't let London become the world's "crime capital"
EPO Strike 10 Days From Now, Planning Assembly Tomorrow, Last Couple of Strikes Had High Participation Rates (1,500-1,600 Staff Went on Strike)
The next strike is in 10 days' time and then there will be another strike
Dr. Andy Farnell on How GAFAM, NVIDIA and Others Lie to People Via the Sponsored Media to Prop Up Lies Under the Guise of "AI"
Lots of key aspects are covered
Links 09/03/2026: GAFAM Outsourcing, "MAGA Political Meddling" in EU, Indonesia Bans Social Control Media for Children Under 16
Links for the day
Using Slop (and Slop in Articles) to Attack Copyleft 'on Budget'
This article is pure BS from an anti-GPL and anti-RMS 'activist'
Why The Register MS Sold Out to Microsoft: They're Losing Lots of Money, The Register MS is Bleeding to Death, Based on Its Own Financial Records
With over 6 million pounds in debt (nearly 10 million US dollars) we guess it's likely some other company will take over the site (if it deems it worthwhile)
Microsofters' SLAPP Censorship - Part 7 Out of 200: Like With the Serial Strangler From Microsoft, Misuse of UK-GDPR to Try to Hide Embarrassing Facts
They do and say really bad things, then allege it's a "privacy violation" to mention those things
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Sunday, March 08, 2026
IRC logs for Sunday, March 08, 2026
Gemini Links 09/03/2026: Exponentials and Tailscale
Links for the day
Sloppyleft
Article by Alexandre Oliva